LOUIS C. PESSOLANO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed a conviction for abortion, holding that the trial court did not err by recessing the trial for one day due to a juror's incapacitation, nor by failing to grant a mistrial or instruct the jury regarding alleged improper remarks by the assistant state attorney, as no prejudice was shown and the remarks did not meet the standard for reversal without objection.
1. No, the trial court did not err in recessing the trial for one day, as no prejudice was shown and there is no authority holding such a recess to be reversible error. 2. No, the alleged remarks of the assistant state attorney did not rise to the level requiring reversal without objection under the cited precedent.
“Appellant cites no authority and we know of none which holds that it is error for the trial judge to recess a trial for one day.”
Establishes the lack of legal basis for the appellant's argument regarding the trial recess.
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Join FLexlaw to unlock all legal intelligenceThe appellant was convicted of abortion and sentenced to three years imprisonment. During the trial, a juror was incapacitated for one day, leading th…
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The appellant was adjudged guilty of the crime of abortion and sentenced for a term of three years to imprisonment at hard labor in the state penitentiary. On his appeal he presents two points. The first urges that the court erred in denying a motion for mistrial when a juror was incapacitated for one day and the court recessed the trial for one day rather than declaring a mistrial as requested. Appellant cites no authority and we know of none which holds that it is error for the trial judge to recess a trial for one day. Certainly it was not reversible error in this case where no prejudice was shown.
Appellant’s second point urges that the judgment should be reversed because the trial judge failed to check improper remarks of the assistant state attorney or to remove the prejudicial effect of such remarks by proper instruction. It is not contended that the claimed prejudicial remarks were objected to but it is urged that a new trial should be granted under the rule set forth in Barnes v. State, Fla.1951, 58 So.2d 157; Blanco v. State, 150 Fla. 98, 7 *238So.2d 333; See also Beard v. State, Fla. App.1958, 104 So.2d 680. In the Barnes case it was held that the remarks of the state attorney were of such a character that neither rebuke nor retraction could entirely destroy their sinister influence and therefore, a new trial was awarded regardless of the want of objection. In the light of appellant’s argument, we have reviewed the record in this case and find that the remarks of the assistant state attorney do not come within the rule stated.
Affirmed.
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Citator
Cited By
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Moore v. State, 259 So. 2d 179 (Fla. 3d DCA 1972)…d that there was a possibility of impeachment of the witness who later testified at trial but the mere suggestion of this possibility does not constitute prejudice. Richardson v. State, Fla.App.1971, 248 So. 2d 530; Pessolano v. State, Fla.App.1964, 161 So. 2d 237. See also Cornelius v. State, Fla.1950, 49 So. 2d 332. Affirmed.…
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Jennings v. Stewart, 308 So. 2d 611 (Fla. 3d DCA 1975)…t’s remaining point claims that the court erred in denying defendant’s motion for a mistrial. This point does not present error on this record. See State ex rel. Pryor v. Smith, Fla.App.1970, 239 So. 2d 85. Compare Pessolano v. State, Fla. App.1964, 161 So. 2d 237. Affirmed.…
Authorities Cited
- Barnes v. State, 58 So. 2d 157 (Fla. 1952)
- Blanco v. State, 150 Fla. 98 (Fla. 1942)
- Beard v. State, 104 So. 2d 680 (Fla. 1st DCA 1958)